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Make judges play poker for money, then see if it's luck

To poker players, predominate is a word probably not often used in their vocabulary; however, to good players “predominate” is the way they approach the game every time they play.

The famous line from Rounders echoes in the minds of these players: “If you can’t spot the sucker in the first half hour at the table, then you ARE the sucker.”

The goal of every decent player is to be able to sit at a table and assess the players, then use skill to prevail. To these players luck exists, but does not control the game at the end of the day.

If a poll was taken of every player at a table one night testing the veracity of these statements, particularly related to games of deepstack hold’em, overwhelmingly the sentiment would affirm their truth and affirm their operation as unwritten rules of the game.So why is it courts of law across the country have such a difficulty understanding poker at its core is a game whose outcome is primarily driven by the skill of the players?

Two recent cases highlight the basic flaws in justice when poker is put on trial as to whether it is a legal game of skill or an illegal game of chance. The cases are Com. v. Dent, 992 A. 2d 190 (Pa.Super. 2010) from Pennsylvania and Three Kings Holdings, L.L.C. v. Six, 2011 WL 2279039 (Kan.App.) from Kansas.

In putting variations of Texas Hold’em on trial, these courts applied what is known as the “predominance” test to determine whether the games were legal games of skill such as bowling and golf or illegal games of chance such as slot machines and craps. The predominance test, true to the definition, is based on what dominates in determining the outcome of the game, a player’s skill or blind chance within the game.

The judges found that in bowling or golf “though chance inevitably intervenes, it’s not inherent in the game and does not overcome skill, and the player maintains the opportunity to defeat chance with superior skill.” In contrast in poker, “a skilled player may give himself a statistical advantage but is always subject to defeat at the turn of a card, an instrumentality beyond his control.” The courts found this to be “a critical difference.”

Despite the testimony from experts in statistics, psychology and poker who testified to the contrary, the judges chose to look solely at the uncertainty of the turn of a card as the dominant factor in the game, which swings the balance to make poker an illegal game predominated by chance. The result of these cases led to the barroom game in Kansas and the home games in Pennsylvania being shut down and deemed illegal.

Player frustrations with these rulings and the fallacy of the courts logic aside, keep in mind a trusted lawyer’s maxim that “you can’t beat the guy in the robe in his court room.” However, you can look for these guys at the poker tables, with their lack of understanding of the game; they will be the ones with “sucker” written across their forehead enjoy teaching them a lesson in “predominance.”

— Marc W. Dunbar represents several gaming clients before the Florida Legislature and teaches gambling and parimutuel law at the Florida State’s College of Law. Follow him on Twitter (@FLGamingWatch) or his website (floridagamingwatch.com).